Conveyancing Act 1919 Conveyancing (Sale of Land) Amendment (Vendor Warranty) Regulation 1998 (1998-691) [GG No 176 of 18.12.1998, p 9735] (NSW)

1998 No 691

New South Wales

CONVEYANCING (Sale of Land) Amendment (Vendor Warranty) Regulation 1998

under the

Conveyancing Act 1919

His Excellency the Governor, with the advice of the Executive Council, has made the following Regulation under the Conveyancing Act 1919.

RICHARD AMERY, M.P.,
Minister for Land and Water Conservation

Explanatory note

Section 52A of the Conveyancing Act 1919 provides (among other things) that a vendor under a contract for the sale o f land is taken to have included in the contract "such terms. conditions and warranties as may be prescribed", Section 66ZA of that Act contains a similar provision concerning options to purchase residential land. The warranties are given as at the date of the contract or option.

I f a warranty is breached. clause 19 of the Conveyancing (Sale of Land)

Regulation 1995 enables the purchaser to rescind the contract or option in

certain circumstances. Schedule 3 to that Regulation currently prescribes the
relevant warranties.

The object of this Regulation is to add a further warranty to those already prescribed. The new warranty is concerned with structures on the land. A purchaser may test the warranty by applying for a building certificate from the local council of the area in which the land concerned is located.

Published in Gazette No 176 of 18 December 1998, page 9735 Page 1

Conveyancing (Sale of Land) Amendment (Vendor Warranty) Regulation 1998

Explanatory note

The additional warranty is prescribed in view of the decision of the New South Wales Court of Appeal in the case of Carpenter & Anor v McGrath & Anor (40 NSWLR 39-76). That case decided, among other things. that an unauthorised structure on land does not constitute a latent defect in title. The case overruled an earlier line of decisions in New South Wales in this respect.

This Regulation also amends clause 19 of the Conveyancing (Sale of Land)
Regulation 1995 so as to prevent a purchaser from rescinding a contract or

option on the grounds of breach of the new warranty if a building certificate has issued. since the date of the contract or option, in relation to the building (or part of the building) to which the warranty relates. It also inserts a definition of budding certificate in clause 3 of that Regulation.

This Regulation is made under the Conveyancing Act 1919, and. in particular, under sections 52A, 66ZA and 202 (the general regulation-making power).

1998 No 691

Conveyancing (Sale of Land) Amendment (Vendor Warranty) Regulation 1998	Clause 1
Conveyancing (Sale of Land) Amendment (Vendor Warranty) Regulation 1998

1 Name of Regulation

2 Commencement

This Regulation commences on 1 January 1999

3     Amendment of Conveyancing (Sale of Land) Regulation 1995

The Conveyancing (Sale of Land) Regulation I995 is amended as

set out in Schedule 1.

4 Notes

The explanatory note does not form part of this Regulation.

Conveyancing (Sale of Land) Amendment (Vendor Warranty) Regulation 1998

Schedule 1 Amendments

(Clause 3)

[1] Clause 3

Insert in alphabetical order in clause 3 (1):

building certificate means a certificate issued in

accordance with sections 149A-149D of the

Environmental Planning and Assessment Act 1979.

Note. Building certificates issued under the Local Government

Act 1919 (“section 317A certificates” and “section 317AE certificates”) that were in force immediately before 1 July 1993, and building certificates issued before 1 July 1998 under the Local

Government Act 1993 (“section 172 certificates”), are taken to be

building certificates issued in accordance with sections 149A-149D

of the Environmental Planning and Assessment Act 1979. (See

clause 20 of Schedule 7 to the Local Government Act 1993 and clause 59 (2) (a) of the Environmental Planning and Assessment

(Savings and Transitional) Regulation 1998.)

1. Clause 19 Circumstances under which purchaser may rescind contract or option

   Insert after clause 19 (3):

(4)

Further, a purchaser may not rescind:

( a )	a contract for the sale of land for a breach of so much of the warranty prescribed under section 52A (2) (b) of the Act as is set out in item I ( d ) of Part 1 of Schedule 3, or
( b )	an option to purchase residential land for a breach of so much of the warranty prescribed under section 66ZA (1) of the Act as is set out in item 1 (d) of Part 2 of Schedule 3,

if a building certificate in respect of the building (or part of the building) to which the warranty relates has issued since the date of the contract or option concerned.

Conveyancing (Sale of Land) Amendment (Vendor Warranty) Regulation 1998

Amendments Schedule 1

[3]        Schedule 2 Prescribed terms

Omit “, or” from paragraph (b) of Schedule 2. Insert instead “,”.

[4]        Schedule 2

Omit paragraph (c).

[5]        Schedule 2

Omit “or non-compliance” from the ranged-out words at the end of the Schedule.

[6]        Schedule 3 Prescribed warranties

Omit item 1 from Part 1 . Insert instead:

1 .          The vendor warrants that. as at the date of the contract and except as disclosed i n the contract:

the land is not subject to any adverse affectation,
and

the land does not contain any part of a sewer belonging to a recognised sewerage authority, and

the section 149 certificate attached to the contract specifies the true status of the land the subject of the contract in relation to the matters set out in Schedule 4 (item 3 excepted) to the Environmental Planning and Assessment Regulation 1994, and

that is included in the sale of the land) that would

structure on the land (being a building or structure there is no matter in relation to any building or

justify the making of any upgrading or demolition order or, i f there is such a matter, a building certificate has issued in relation to the building or structure since the matter arose.

Conveyancing (Sale of Land) Amendment (Vendor Warranty) Regulation 1998

Schedule 1 Amendments

1. Schedule 3, Part 1, item 2

   Omit "published." from paragraph (c) ( i v ) . Insert instead:

published. and

(d) upgrading or demolition order means any of the

following:

( i ) order No 2 in the Table to section 121B of the Environmental Planning and Assessment Act 1979, being an order made

in the circumstances referred to in

paragraph (a) relating to that order.

(ii) order No 12, 13 or 14 in the Table to section 121B of the Environmental Planning and Assessment Act 1979.

( i i i )      order No 1 in the Table to section 124 of the Local Government Ac t 1993, being an order made in the circumstances referred to in paragraph (d) relating to that order.

( i v ) order No 3 in the Table to section 124 of the Local Government Act 1993, being an order made in the circumstances referred to in paragraph (c ) relating to that order.

Omit item 1. Insert instead:

1 .          The vendor warrants that. as at the date of the option and except as disclosed i n the option:

(b) the land does not contain any part of a sewer belonging to a recognised sewerage authority, and

( c ) the section 149 certificate attached to the option specifies the true status of the land the subject of the option in relation to the matters set out in Schedule 4 (item 3 excepted) to the Environmental Planning and Assessment Regulation 1994, and

Conveyancing (Sale of Land) Amendment (Vendor Warranty) Regulation 1998

Amendments Schedule 1

(d) there is no matter in relation to any building or structure on the land (being a building or structure that is included in the sale of the land) that would justify the making of any upgrading or demolition order or. if there is such a matter. a building certificate has issued in relation to the building or structure since the matter arose.

[9]        Schedule 3, Part 2, item 2

Omit "published." from paragraph (c) ( iv ) . Insert instead:

published, and

(d )	upgrading or demolition order means any of the following:
( i ) order No 2 in the Table to section 12 1 B of the Environmental Planning and Assessment Act 1979, being an order made

in the circumstances referred to in

paragraph (a) relating to that order.

(ii) order No 12, 13 or 14 in the Table to section 121B of the Environmental Planning and Assessment Act 1979.

( i i i ) order No 1 in the Table to section 124 of the Local Government Act 1993, being an order made in the circumstances referred to in paragraph (d) relating to that order.

(iv) order No 3 in the Table to section 124 of the Local Government Act 1993, being an order made in the circumstances referred to in paragraph (c) relating to that order.